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Bias Law Used to Move a Man Off Death Row

A death sentence for Marcus Reymond Robinson, left, was reduced at Friday’s hearing to life in prison without parole.Credit
Andrew Craft/The Fayetteville Observer, via Associated Press

FAYETTEVILLE, N.C. — Concluding that racial bias played a significant factor in a death sentence here 18 years ago, a judge on Friday ordered that it be changed to life in prison without parole, the first such decision under North Carolina’s controversial Racial Justice Act.

The landmark ruling could be the first of many under the law, which allows future defendants and current death row inmates to present evidence, including statistical patterns, suggesting that race played a major role in their being sentenced to death.

It is also likely to influence the nation’s enduring discussion over capital punishment, particularly with an increasing number of states deciding to repeal the death penalty outright.

“This opinion will profoundly shape any ongoing debate about this,” said Douglas A. Berman, a law professor at Ohio State University who runs the blog Sentencing and Law Policy. “In a weird way, this ruling vindicates critics of racial justice acts, because they tend to say when we start opening up old cases it will be too easy for the defense bar to prove some kind of racial injustice and therefore stop the death penalty altogether.”

Nearly all of North Carolina’s 157 death row inmates have filed claims under the act.

As both the defendant, Marcus Reymond Robinson, and relatives of the man he killed sat motionless and silent, Judge Gregory A. Weeks of Cumberland County Superior Court declared his finding that “race was a materially, practically and statistically significant factor” in the jury selection process not only in Mr. Robinson’s trial but in trials across the county and state.

Mr. Robinson’s guilt was not at issue. The judge called his crime — kidnapping 17-year-old Erik Tornblom, shooting him and stealing his car and $27 in his wallet — “unspeakably horrendous.”

But a statistical study of racial disparities during jury selection revealed strong enough findings “to support a conclusion of intentional discrimination” at every level, Judge Weeks said in his 167-page ruling.

Prosecutors said they would appeal the decision.

The ruling comes as states around the country are re-evaluating execution as a means of punishment. A week ago, Connecticut’s legislature voted to repeal the death penalty, the fifth state in five years to do so. Californians may soon vote on the issue in a referendum. A group of current and former federal and state prosecutors recently called for a suspension of the death penalty in Kentucky, the only state that has a similar — though narrower — Racial Justice Act.

Photo

Mr. Robinson’s mother, Shirley Burns, at left, hugged a family friend after the ruling, the first under North Carolina’s Racial Justice Act.Credit
Andrew Craft/The Fayetteville Observer, via Associated Press

Prosecutors in North Carolina have strongly opposed the act since its passage in 2009, arguing that the law is far too broad, that it would be extremely costly and that it is little more than an indirect moratorium on the death penalty.

“This is not about racial justice,” said Tom Keith, a former district attorney in Forsyth County. “The real purpose is to end the death penalty, to make it so complicated and so expensive that they win by attrition.”

Supporters of the law disagreed with that reading.

“I don’t think that’s true at all,” said Tye Hunter, executive director of North Carolina’s Center for Death Penalty Litigation and one of Mr. Robinson’s lawyers. What the law does hold, he said, is that “we can’t continue to have a death penalty that depends on discrimination against African-Americans.”

The newly Republican state legislature passed a bill that would have significantly limited the scope of the law, but Gov. Bev Perdue, a Democrat, vetoed it. Republicans are planning to pass a similar law, possibly this year.

By coincidence, Friday’s decision came down two days before the 25th anniversary of the United States Supreme Court decision McCleskey vs. Kemp, in which the court ruled 5 to 4 that statistical evidence of a significant racial disparity in death sentences in Georgia was not sufficient reason to overturn a Georgia man’s death verdict. Toward the end of his decision, Justice Lewis F. Powell Jr. said that state legislatures were more qualified to decide how statistics should be used in such cases.

North Carolina’s law allows a defendant to argue that race was a significant factor in his death sentence by presenting evidence along any of three lines: that a death sentence was more likely to be sought or imposed on defendants of one race, that it was more likely when the victim was a certain race or that racial bias influenced jury selection.

Mr. Robinson is black and his victim was white — a fact that was pointed out in closing arguments by prosecutors, who described Mr. Robinson as racially biased for a violently anti-white statement he made before the murder.

But this hearing concerned bias in picking jurors, as opposed to the race of the defendant or the victim. There are three other Racial Justice Act claims now being heard, and in one of the cases the inmate is white.

In the section of the law that has been most hotly disputed, a defendant is allowed to use statistics to prove that bias was a factor in death sentencing in the county where he was tried, or in the district, or even statewide.

The study in Mr. Robinson’s hearing, by researchers from Michigan State University, examined jury selection in at least one proceeding involving every inmate on death row in 2010, for a total of 173 capital trials. The study found that prosecutors used peremptory challenges to remove blacks from juries at a rate more than twice that of whites, a disparity even more pronounced in the trials the researchers examined in Cumberland County and in Mr. Robinson’s trial in particular.

The disparity remained significant, the researchers said, even when the study controlled for other variables, like a potential juror’s feelings about the death penalty. “Factors such as having previously been accused of a crime or expressing reservations about the death penalty were strong predictors of being struck by the state,” the study read, “but none could account for the effect of race.”

Prosecutors challenged the methodology of the study — much of the testimony at the hearing was a debate over statistics — but most pointedly they argued that jury selection is a “complex discretionary system,” with thousands of possible reasons to remove a potential juror.

Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, criticized the study and Judge Weeks’s ruling in an e-mail, saying that the nuances of picking jurors that cannot be captured so simply. “A difference in raw numbers between racial groups is not proof of discrimination,” he wrote. “It is not even probable cause for a suspicion of discrimination.”

Prosecutors in North Carolina made similar arguments, but with a further undercurrent of indignation, as such suspicions are essentially implications of their own work.

“They do not have some secret society of prosecutors maniacally plotting to remove people from juries,” Rob Thompson, an assistant district attorney in Cumberland County, said in his closing arguments. “They do not have any of that because there is no such evidence. It doesn’t exist. They have numbers.”

But Robert P. Mosteller, a professor at University of North Carolina Law School, said it would be wrong to simply dismiss the idea of racial bias in jury selection after a decision finding evidence of intentional discrimination on so many levels. If anything, he said, Judge Weeks’s decision should prompt similar large-scale studies in other states.

“It’s illegal and people do it,” Professor Mosteller said. “It’s wrong. And he found it.”

A version of this article appears in print on April 21, 2012, on page A1 of the New York edition with the headline: Bias Law Used To Move a Man Off Death Row. Order Reprints|Today's Paper|Subscribe